Kiobel II: Summaries of Key Amicus Briefs


hen a statute gives no clear indication of an extraterritorial application, it has none.”  Because the ATS provides no clear indication of extraterritorial application, the inquiry ends.  Second, applying the ATS to the actions of American companies abroad creates disincentives for such companies to invest in developing nations and puts those American companies at a substantial disadvantage vis-à-vis their foreign competitors.  Under the limited view of extraterritoriality, plaintiffs seeking a deep pocket in ATS cases could simply target U.S. companies, while their foreign competitors would sidestep those costs altogether.  This penalty for being an American company finds no support in logic, the text of the statute, or the previous positions of the U.S government.

Former U.S. State Department Legal Advisers

The brief for former Legal Advisers to the State Department argues that the Court should categorically apply the presumption against extraterritoriality to the ATS and reject the State Department’s current proposal for “case-by-case” deference to the Executive. This approach is more faithful to U.S. foreign policy objectives and Supreme Court precedent than the “case-by-case” approach. First, the presumption against extraterritoriality is designed to avoid the significant foreign relations concerns that would be raised by U.S. attempts to regulate conduct within the territory of foreign sovereigns.  Second, the United States consistently has viewed as separate questions what the substance of international law should be and whether the United States should domestically impose its views of international law extraterritorially. For example, the United States ratified the ICCPR in 1992, but took the position that it would not enforce the Covenant with respect to conduct outside the United States.  Third, with regard to extraterritoriality generally, the United States consistently has advocated a categorical approach, which the Supreme Court has consistently upheld. Fourth, the practice of consulting the State Department as to whether specific litigation matters should go forward has not worked well in the other contexts, such as foreign sovereignty immunity cases.  Moreover, the model of soliciting the United States’ case-specific views is even less appropriate in deciding statutory interpretation issues such as extraterritoriality, because the meaning of the statute should not change depending on the views of the Administration that is in place.  Amici therefore urge the Court to reject the “facts and circumstances” test for extraterritoriality urged in the United States’ Supplemental Brief and to hold categorically that the ATS does not authorize suits for violations of the Law of Nations occurring solely within the territory of a foreign sovereign.